J. Vella, Esquire, Deputy Attorney General.
W. Wharton Judge.
14th day of November, 2017, upon the Department of
Correction's ("DOC") application pursuant to 11
Del C. § 4217 to modify Defendant Jawan D.
Hamilton's ("Hamilton") Level V sentence
imposed by the Court on July 19, 2013; the Board of
Parole's ("BOP") recommendation that the Court
grant the application; the State's response in opposition
to the application, and the record in this case, it appears
to the Court that:
Hamilton pled guilty to Drug Dealing and Possession of a
Firearm by a Person Prohibited. He was sentenced on July 19,
2013, effective October 28, 2012, to a total of 18 years at
Level V, suspended after serving eight years at Level V for
decreasing levels of supervision. Of the eight years Hamilton
was sentenced to serve at Level V, three years were a minimum
Hamilton has filed a total of three sentence modification
motions under Rule 3 5. The first was denied on October 23,
2013, however, Hamilton was granted leave to file a
subsequent Rule 35(b) motion upon the completion of the
minimum mandatory portion of his sentence. Shortly
thereafter, another Rule 35(b) motion was denied on November
15, 2013. Finally, his third motion was denied on March 11,
2016 by this Court as both procedurally barred and without
merit. The Court considered the merits of the
motion because the sentencing judge had granted Hamilton!
leave to file a successive Rule 35(b) motion after serving
his minimum mandatory sentence, and that minimum mandatory
period had been served.
August 1, 2017, DOC submitted an application for sentence
modification on Hamilton's behalf under 11 Del.
C. 4217. That section permits DOC to submit an
application for sentence modification for "good cause
shown" which certifies that the inmate's release
"shall not constitute a substantial risk to the
community or the defendant's own
self." "Good cause" includes
rehabilitation of the offender. The application makes the
required certification and cites Hamilton's good
behavior, that he earned his GED, and the amount of time he
has served compared to the time remaining on his sentence.
With respect to the last factor, it appears that
Hamilton's Adjusted Release Date is November 10, 2019.
DOC recommends that the balance of Hamilton's sentence be
suspended upon successful completion of the KEY program, that
any remaining balance be served at Level IV CREST, and that
upon successful completion of CREST, that Hamilton serve any
remaining time at Level III CREST aftercare.
voted to recommend a modification to what amounts to time
served at Level V followed by eight months of Level IV Work
Release, followed by Level III. Like DOC, BOP notes that
Hamilton has completed Thresholds, Alternatives to Violence,
My Brother's Keeper, and Automotive Class. It is not
clear why BOP's recommendation deviates from DOC's.
State opposes a reduction noting that, in denying a previous
Rule 35(b) motion in 2016 the Court found that the original
sentence was appropriate.
Having considered all of the above, the Court has determined
to modify Hamilton's sentence in accordance with the
recommendation of DOC. In contrast to DOC's application,
the 2016 motion requested a suspension of Hamilton's
Level V sentence for Level IV Home Confinement, with Hamilton
to be held at Level III until Level IV Home Confinement was
available. The Court denied that motion on March 11, 2016.
Since then, Hamilton has served an additional 20 months at
Level V. While the Court still believes the original sentence
was an appropriate one, it also believes that the modified
sentence ordered here, based on DOC's recommendation,
including its certification that Hamilton does not pose a
significant risk to the community and its recommendation that
he complete the KEY/CREST continuum also is an appropriate
sentence, but a preferable one.
IT IS HEREBY ORDERED that the application of the
Department of Correction pursuant to 11 Del. C.
§ 4217 to modify Defendant Jawan Hamilton's Level V
sentence is GRANTED. The Defendant's
sentence as to INI3-01-1413 Possession of a Firearm by a
Person Prohibited is modified as follows: The Defendant is
placed in the custody of the Department of Correction for
eight (8) years at supervision Level V with credit for six
(6) days previously served, the first three (3) years of
which is a minimum mandatory period of incarceration,
suspended after three (3) years at supervision Level V
and successful completion of the KEY program, for
the balance at supervision Level IV CREST, suspended upon
successful completion for one (1) year at supervision Level
III CREST aftercare. All other terms and conditions of the
Defendant's sentence in ID NO. 1208019349 are unchanged.
A new sentencing order shall issue.
State v. Hamilton, ID No.
12008019349, D.I. 53.